RE NULLIFICATION IS OUR RIGHT
Looked over Thomas Woods' essay and looked at some of his linked material.
Looked up Thomas DiLorenzo. From what I can tell, the arguments being made
by these folks are intended to deconstruct what they see as illegitimate
constitutional development and to resurrect what they see as the legitimate
Constitution or the intent of the founders.
None of these fellows has a law degrees, is a law professor, practices law,
or is trained in the law. Several are associated with the Ludwif von Mises
Institute, a libertarian academic organization in Alabama, which is "
inspired by the work of Austrian School economist Ludwig von Mises,"
according to Wikipedia.
One argument Woods makes -- and it's a valid one (and he makes several
arguments which I think are worth considering) -- is that "most people have
unthinkingly absorbed the logic of the modern state, whereby a single,
irresistible authority issuing infallible commands is the only way society
can be organized" and that this is not so set-in-stone as we might think.
His argument is that we can still challenge that doctrine, and he's right,
That, however, doesn't mean one can say "nullification is our right" and
anybody who disagrees is "ignorant" and "constantly try[ing] to belittle
their betters." Nor does it mean that the nullification doctrine is, after
all, legitimate. It simply means it can still be legitimately argued.
Woods cites the Supremacy Clause as his main legal argument: "What the
Supremacy Clause actually says is: 'This Constitution, and the Laws of the
United States which shall be made in pursuance thereof…shall be the supreme
law of the land.'" " A nullifying state maintains that a given law is not
'in pursuance thereof' and therefore that the Supremacy Clause does not
apply in the first place." This seems to me to be a valid constitutional
argument, although many questions about supremacy have already been answered
by courts and I'm not sure whether they'd consider this as having been
settled by precedent or not. I'd have to do more research on it.
Constitutional scholar Jethro Leiberman writes dismissively in "A Practical
Companion to the Constitution" - "'States rights' is not a constitutional
term but a political slogan ... In its more extreme forms, the doctrine of
states' rights has always been a doctrine advocating the power of an
entrenched group to repress less favored groups. Under the Supremacy Clause,
the position of ardent states' rightists simply collapses, as it has
historically, though not without bitter struggle and wistful hopes even to
Leiberman notes that "Federalism is one of the distinctive American
contributions to political theory and practice. That it takes practice is
evident from the tensions among the sister republics in the former Soviet
Union and from the bloody battles in other Eastern European countries. The
Framers were concerned to give only those powers to a central government
necessary to protect the nation while reserving all other powers to the
In "Decision in Philadelphia: The Constitutional Convention of 1787" (1986),
Christopher Collier and James L. Collier write: "The Constitutional
Convention was called because of a general recognition that the national
government formed under the Articles of Confederation was weak and
ineffective. The root cause of this ineffectiveness, most of the delegates
agreed, was the habit the states had of disregarding the demands places upon
them by the national government or actually passing laws of their own
contrary to national ones. Even worse, in the view of many of the delegates,
was the way states so frequently passed laws that encroached on the rights
of their own citizens - in particular, ramming paper money down creditors'
throats. James Madison, especially, viewed these depredations against
property with fear and loathing; he said that 'the evils issuing from these
[state] sources contributed more to that uneasiness which produced the
Convention and prepared the public mind for a general reform, than those
which accrued to our national character.' Madison was not alone. Randolph,
in his opening speech, insisted that the Confederation 'could not defend
itself against the encroachments from the states.' *** "Dickinson of
Delaware said that 'all were convinced of the necessity of making the
general government independent of the prejudices, passions, and improper
views of the state legislature[s].' John Francis Mercer of Maryland said
that the 'corruption and mutability of legislative Councils of the states"
had brought about the Convention in the first place." (259-60)
All fodder for thought on an interesting subject. Thanks for raising this
issue for discussion, Kaj.